Free Speech vs. Internet Privacy and the 'Right to Be Forgotten'

Amazingly, an EU court's recent landmark opinion refers to an 1890 Harvard Law Review article entitled "The Right to Privacy," co-authored by Louis D. Brandeis, which contends that individuals have the right to be protected: "Recent inventions and business methods such as instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life."

The conventional wisdom of the Internet is that everything posted, whether on social media,
a website or anywhere else, will be on the Internet forever. That conventional wisdom was just
challenged successfully in a recent ruling handed down by the EU's highest court. A new conventional
wisdom may arise from that ruling -- that we have a "right to be forgotten."

Beginning in 1989, the EU was interested in protecting the privacy of EU citizens. As a result, a law known as the "EU 1995 Data Directive," or Directive 95/46, was created. This law gives EU residents a broad
right to privacy, allowing them to require that information stored in computers or on the Internet be
corrected or removed. A number of EU citizens' cases have been brought for the correction or removal
of reports in news media that include what is considered private information.

Mario Costeja González, a Spanish citizen, relied on the EU Data Directive in February 2010 when he
sued a news media and Google over a 1998 article about his González's tax problems. González's
claim against Google was that he did not want the search engine to provide the 1998 article. This appears
to be the first time Google, or any search engine, was brought into a privacy suit to remove links to an
article when searching a name. González won the suit in July 2010.

The court ruled that Google had to take the measures necessary to withdraw the data from its index
and to render future access to it, through Google's search technology, impossible. The court rejected the complaint against the
publisher, saying that publication of the tax information was "legally justified." That meant the article
could remain on the Internet, but that Google could not make it findable. Google appealed the ruling.

The appeal wound its way through the EU court system until the case reached the highest EU Court --
the European Court of Justice in Luxembourg.
On May 13, 2014, the European Court of Justice included this statement in its ruling:

"… the role of internet search engine service providers should be interpreted in the light of the existing EU legal instruments relating to data protection, and in particular the Directive. Although the EU Court agreed with the ruling of the lower court, as The New York Times noted, the Court ruling provided 'no guidance on how their ruling was to be carried out, they also gave no indication that they recognized the Pandora's box their ruling might open.'"

What Did the EU Court Say?

Amazingly, the first paragraph of the EU court's opinion refers to an 1890 Harvard Law Review article
entitled "The Right to Privacy," co-authored by Louis D. Brandeis (later Justice on the U.S. Supreme Court), which contends
that individuals have the right to be protected: "Recent inventions and business methods such as instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life."

Fast forward to 2014. The Internet has changed communications completely. Photographs and
newspaper stories have given way to digital news and social media, which has resulted in instantaneous
worldwide communications that makes control and ownership very complex.
Immediately after quoting Justice Brandeis, the EU Court stated the following:

"Nowadays, protecting personal data and privacy of individuals has become increasingly
important. Any content including personal data, be it in the form of texts or audiovisual
materials, can instantly and permanently be made accessible in digital format worldwide.
The Internet has revolutionized our lives by removing technical and institutional barriers to
dissemination and reception of information, and has created a platform for various information
society services. These benefit consumers, undertakings and society at large. This has given
rise to unprecedented circumstances in which a balance has to be struck between various
fundamental rights, such as freedom of expression, freedom of information and freedom to
conduct a business, on one hand, and protection of personal data and the privacy of individuals,
on the other."

The EU Court identified three situations that relate to personal data on the Internet to which it
applied what the media refers to as the "right to be forgotten":
The first is the publishing of elements of personal data on any Web page on the
Internet (the 'source Web page').
The second is the case in which an Internet search engine provides results that direct the
users to the source Web page.
The third, a less visible operation, occurs when an Internet user performs a search using an
Internet search engine, and some of personal data, such as the IP address from which the
search is made, is automatically transferred to the Internet search engine service provider.

Google Complains About the Ruling

The Court gave no direction on what data should be excluded by
Google or how to exclude it, or even how an individual should request data to be excluded, as noted by The New York Times. This can
get complicated. Plus, there is the issue of complying on a continent with 28 different languages.
Google accounts for about 90 percent of the search engine traffic in the EU, but clearly this ruling also affects other search engine vendors in the EU.

Following the EU ruling, Google Chairman Eric Schmidt said that there was "a
collision between a right to be forgotten and a right to know" and the in the ruling "the balance that
was struck was wrong," according to Mashable, which noted that Google was trying to figure out how to handle the requests and would need to build up an "army of
experts" in each of the EU's 28 countries to address such queries.

Google's Removal Request Form

In late May, 2014, Google added a Form to its U.S. website to comply with the EU ruling, allowing certain EU users to request removal from search results. The form requires users to identify the EU country in which they reside and the URLs of the specific links they wish removed.
Google also stated the following:

"We will assess each individual request and attempt to balance the privacy rights of the individual with
the public's right to know and distribute information. When evaluating your request, we will look at
whether the results include outdated information about you, as well as whether there's a public interest
in the information -- for example, information about financial scams, professional malpractice, criminal
convictions, or public conduct of government officials."

In Conclusion

Only time will tell whether Google's attempts to comply will satisfy the EU ruling -- or, more importantly, whether this "right to be forgotten" will be applied in the U.S., or in other
countries outside the EU, with or without a court case.

One thing is for sure: The Court ruling clearly has modified conventional wisdom about information being found on the Internet forever.

E-Commerce Times columnist Peter S. Vogel is a partner at
Gardere Wynne Sewell, where he is Chair of the Internet, eCommerce & Technology Team. Peter tries lawsuits and negotiations contract dealing with IT and the Internet. Before practicing law, he was a mainframe programmer and received a Masters in computer science. His blog covers
IT and Internet topics. You can connect with him on
Google+.